tv [untitled] March 15, 2013 4:00pm-4:30pm PDT
>> welcome to the march 6, 2013 meeting of the san francisco board of appeals. the presiding officer tonight is board president kurt fong and joined by the vice president anne lazarus and commissioners arcelli and darrell honda. [speaker not understood] will be off this evening. robert brian will provide the board with any legal advice this evening. and at the control of the board's legal assistant victor pacheco. i'm the executive director. we are also joined this evening representatives. scott sanchez is the zoning administrator. he is also representing the planning department and." jeannine young is here from the department of public health environmental health section. and i believe joseph duffy is here as well, senior building inspector representing the building of building
inspection. mr. pacheco, at this time if you could please go over the board's meeting guidelines and conduct the swearing in process. >> the board requests that you turnoff all phones and pagers so they will not disturb the proceedings. please carry on conversations in the hallway. the board's rules of presentation are as follows. appellants, permit holders departments and representatives each have 7 minutes to present their cases and 3 minutes for rebuttals. people affiliated with these parties must include their comments within the 7 or 3-minute periods. members of the public who are not affiliated with the parties have up to 3 minutes each to address the board but no rebuttals. to assist the board in the accurate preparation of minutes, members of the public who wish to speak on an item are asked but not required to submit a speaker card or business card to staff when you come up to the podium. speaker cards and pens are available on the left side of the podium. the board also welcomes your
comments and suggestions. there are customer satisfaction survey forms on the left side of the podium as well. if you have questions about requesting a rehearing, board rules or hearing schedules, please speak to board staff during a break or after the meeting or call the board office tomorrow morning. the board of appeals office is located at 1650 mission street, room 304 between duboce and van ness avenues. this meeting is broadcast live on san francisco government television sfgtv, cable channel 78, and dvds of this meeting are available for purchase directly from sfgtv. thank you for your attention. at this point in time we will conduct our swearing in process. if you intend to testify at any of tonight's hearings and wish to have the board give your testimony evidencery weight, please stand, raise your right hand, and say "i do" after you have been sworn in or affirmed. please note that any member of the public may speak without
taking this oath pursuant to their rights under the sunshine ordinance in the administrative code. thank you. do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth and nothing but the truth? i do. >> thank you. >> thank you, mr. pacheco. commissioners, before we begin our agenda there is one housekeeping item that the president has agreed to hear now. this has to do with item number 7, appeal number 12-171, matthew and christine lefferts, having to dot with the property at 6 07 buena vista avenue. the attorney for the appellants has requested a continuance of this matter and has asked that the continuance be heard in advance of the calendar. >> i'm comfortable with that. >> okay. so, we can give three minutes to each side? >> yes. >> okay. starting with the appellant.
good evening president fong and members of the board, i'm susan brand holley representing matthew and christin leffers who are appealing on behalf of the neighborhood. because i haven't appeared before this constituted board before, i have appeared before mr. fung, i'd like to briefly state that i'm an attorney. i've been practicing c-e-q-a, public interest side c-e-q-a excuses for over 30 years. i work in many jurisdictions around the state. i've appeared before this board as well as many times before the planning commission and board of supervisors. and though i'm not acquainted with you, i certainly am acquainted with staff and other planning staff here as well. we are asking that this matter be postponed, a hearing until after the board of supervisors hears the pending appeal of the c-e-q-a categorical exemption. and i really regret that there's been a misunderstanding
about the process here. in the past, times when i've appeared before this board and i've discussed this in the past with the city attorney's office, elaine warren, there's always been a stay of board of appeals proceedings if there is a pending c-e-q-a appeal. the c-e-q-a appeal in this case has been stated to be timely. we have a hearing date of april 6. although i've heard from the counsel for the applicant that they would like that to be continued, they are going to request a continuance because of their availability which we will not oppose. so, in the past there's always been a stay. so, in this casey knew we were filing an appeal. and when it came time to file our brief, i did not do that. i called as a courtesy to staff to let them know the reason i depth file was that i knew we were going to be going to the board of supervisors and this matter would be stayed. ~ didn't i then learned that there had been one situation a year ago
where that, in fact, had not occurred that an appeal to the board of supervisors that was filed one day before the hearing before this board was held not to be a reason to hold up the hearing. and that did not happen. i understand that matter later settled. but that there's been a change in policy of this board apparently that there isn't an automatic stay. and i'd just like you to understand that i didn't know that. there's been no public notice of that. and, so, i didn't know, and that's why i didn't file. no games playing, no trying to do anything sneaky here. that's not the way i would do things and that's certainly what happened here. oh, i have a little bit more time. so, i know there may be a difference of opinion. i am understanding now between the city attorney's office and myself, i believe this board can't lawfully act without a final c-e-q-a determination, which is now pending before the board. it's also a waste of your resources because if you were to go ahead with the hearing and the board grants the
categorical exemption appeal which we think has great merit, all this work would be for nought. we ask that this matter to be continued and come as quickly after the board of supervisors appeal is convened for this board. again, we regret this inconvenience. it is a short amount of time. the applicant -- even if our a peasv aren't positive can't go forward with the project until after. >> thank you. you're very welcome. no questions? >> not yet. mr. hill? >> good evening, president fong and commissioners. tracy [speaker not understood]. i represent the respondents here this evening. the board has already spoken on this matter. i just want to give you a brief history of the appeal and how it got before you here tonight. it was filed on december 27th. at that time a briefing schedule was set and the appellants' brief was due on the 14th of february.
no brief was submitted. instead, on february 15th, a rescheduling request was submitted by the appellant the day after the brief would have been due. a few days later, the board -- this board correctly denied that request to delay the hearing and the expectation was set at that time that the case would be heard tonight. before you is the same request just in different clothes. so, we believe that a continuance would be prejudicial to the permit holders in terms not just time, money and scheduling, we've flown in the architect from new york, for instance, but also there's little chance, as you know, that a decision to affirm the permit would be vacated at the board of supervisors. so, for all these reasons and in the interest of administrative fairness, we respectfully request you deny the motion for continuance and hear the case this evening. thank you. >> okay. is there any public comment on this?
commissioners, unless you have questions and matters of consideration. >> for the record, the board did not deny the rehearing request. i had jurisdiction and authority to and discretion to make that decision and i did it alone. so, the rehearing request, my thinking behind that was that there had not at that point in time, when the request was made of me to delay or allow this hearing to go forward today, a decision by the board of supervisors as to the timeliness of the appeal on the c-e-q-a matter. and, so, for that reason i didn't see any reason, because it could have been -- it could have gone in either direction. at this point, and i anticipated in the event the appeal would have been deemed
timely, i anticipated that request for continuance would have been requested today and that is one of the reasons why i had asked -- allowed for this matter to be heard first because that did -- does materially impact my decision, which i would say that because we could not act -- if we can't have any decision go forward until -- unless and until the board of supervisors resolves that matter. so, for that reason i would be inclined to go ahead and continue this until after that decision is determined. >> that makes sense to me as well. and based on what i heard, i think there is good cause for the continuance. >> do we have any sense of the timing of the board's hearing on the matter? >> my understanding is it's currently scheduled for april 9th. we just heard this evening there may be a request to postpone that. i don't know if that's forthcoming or not. >> i can speak to that. i will be out of town that week
of april, so, we have to push it back probably at least a week. >> i also agree postponement would be so we can hear this after the board has reached their agreement probably make most sense. >> also, in light of the testimony by the attorney for the appellants, it seems to me that given the misunderstanding -- the other thing i want to address, too, in terms of a policy, as far as i know, there is no written policy with respect to staying, having any automatic stay. had there been, i would presumably made a decision in a different direction at the initial request. so, this is not a change in policy in any way. there is no policy that i'm aware of that's in writing. if there was a general practice, that's a different type of circumstance.
but given the testimony by the appellant's attorney, i would also allow for a briefing, given that no brief was submitted because there was a misunderstanding that we had a practice, long-standing practice of doing a stay, of allowing for a stay under these types of circumstances. i don't know if that would -- and for that -- i would move to continue and allow the appellant's attorney to file a brief at the point, if it comes back to us. >> okay. so, a couple questions. one is the date to which you want to continue it and the other is do you want to allow the permit holder an opportunity to submit a response to whatever the appellant submits? >> that would normally be the case. >> because there would be an opportunity -- yes, i would allow for the briefing if that was so requested. >> timing wise, what would you suggest? >> sounds like they're going to
ask for a hearing on april 16th, which is the week following. is that correct? yes, the board of supervisors can hear the matter on april 15th, yes. >> april 15th, april 16th is the day that the board of supervisors would hear it. >> then we'd be here the 17th hopefully. >> right after, okay. >> your calendars are very full in april, but it's your decision. >> if i just briefly thank you very much for how this seems to be going here. i appreciate it. i would just note that if the board does grant our appeal, ~ if we had submitted -- we can certainly give you a copy of our board of supervisors [speaker not understood] had this board of going through the work of preparing for this when it may not happen. it's up to present counsel. i really don't care about -- the board may end up working this up which may not be necessary. we will submit our brief for
the board of supervisors. at this point the issues are very similar, just different standards for the board. that comes in, i believe the middle of march shall, you know, quite soon, and we'll be glad to have that be our briefing at this board and leave the date to the board. >> i would ask we be given an opportunity to respond with a brief. >> yes. >> okay. so, the 17th. >> so, my understanding, then, is continued to the 17th, allow the appellant's counsel to submit the regular brief three thursdays prior to hearing, and the permit holder to submit a response brief one thursday prior, 12-page limit? >> hold on one second. >> everything but the date. everything you said but the date. we're still talking about it. >> [inaudible]. >> commissioner hurtado is suggesting may. the first date we have is may 8.
that's pretty full, too. may 8. >> the motion is may 8? >> yes. >> okay. >> we have a motion, then, from the president, mr. pacheco. call the roll, please. >> on that motion from the president to reschedule this matter to may 8, 2013, [speaker not understood] prior permit holder and department is due one thursday prior. on that motion with that briefing schedule, commissioner fung is absent. commissioner hurtado? >> aye. >> commissioner honda? >> aye. >> thank you. the vote is 4 to 0. this matter is rescheduled to may 8th. thank you. thank you so much. >> okay. then, we'll return to our regular calendar starting with item number 1 which is public comment on any item that is not on tonight's agenda.
is there any member of the public who would like to speak under that item? okay, seeing none, we'll move to item 2, commissioner comments and questions. commissioners? >> i just want to point out i will be at the start of the meeting on april 24th, but will be leaving around 6:30. >> oh, okay. >> okay. is there any public comment on this item? seeing none, then we'll move to item number 3. commissioners, that is the adoption of minutes and you have before you the february 20th, 2013 minutes for your consideration. >> i'll move their adoption. >> okay. any public comment on the minutes? seeing none, mr. pacheco, if you could call the roll on that, please. >> on that motion from the president to adopt the february 20th minutes, commissioner fung is absent. commissioner hurtado? >> aye. >> vice president lazarus? >> aye. >> commissioner honda?
>> aye. >> thank you. the vote is 4 to 0. those minutes are adopted. >> thank you. calling item 4, appeal number appeal no. 12-150, alla benhamimi d/b/a alcatraz market vs. department of public health. the address is 757 beach street, appealing a 25-day suspension of a tobacco product sale permit, imposed on november 14, 2012. reasons for suspension, selling tobacco products to minors. this is director caps case no. smk [speaker not understood]. is on for hearing today and we will start with the appellant. you have 7 minutes to present your case. first of all, good evening. what happened is i've been in business for nine years. you know, i never sold tobacco to any, you know, anybody who is under age and i make sure every time, you know, kids from the school they come to me and ask them to sell them whatever. i never did that. the incident happened.
my employee was training another employee and the dee coy come with the cups, i think it was like an honest mistake and i'm so sorry that happened. from that day we're working, making sure that incident wouldn't happen again. and i just want to mention my store being vandalized last week. so, i'm just having a financial crisis right now. and, you know, so, my store keeps saving the people [speaker not understood]. i keep feeding my family. so, thank you. that's all i have to say. >> sir, could you state your name for the record? yeah, my name is [speaker not understood]. >> thank you. okay, we can hear from the public health department now. >> good evening, commissioners. i'm jeannine young, senior health inspector with the department of health environmental health section. i would like to share some
information about the minors in the san francisco police department dee coy program. all the minors participating with the police department are 16 years or younger. i would also like to let you know the california identification cards are easy for you to check the ages. first, the cards are now horizontal and there is a blue strip on the identification cards which indicates the year that the individual will become 18. and none of the minors participating in the san francisco police department dee coy program are even near 18. therefore, the blue strip on the minor's dee coy horizontal california identification card indicates that the year the individual will become 18 is in 2015, 2016, or 2017. in addition to the horizontal identification cards, the blue strip with the year the individual becomes 18, every year dph tobacco free project
sends out guidelines to permit holders. these guidelines tell store managers how they can stop sales to minors by developing store policies, training clerks, displaying posters that want employees, the cost of selling tobacco to kids, using electronic age verification devices and monitoring clerks to determine the need for further training or modification of their store policy. in either of the annual guidelines and the horizontal california identification card, alcatraz market sold to a minor, the employee said the minor looked 15 years of age. a big concern to the department is the proximity of alcatraz market to any middle and high school and only four blocks away gallileo high school and
six blocks away is francesco middle school. furthermore, alcatraz market is located on beach street and is about a block and a half away from the powell and high street cable car turn around. across the street is aquatic park. this is an area in san francisco where plenty of youth like to hang out after school and on the weekend. so, alcatraz market, because of their location, must be very vigilant checking the identification of the youth. now, according to the 2010-2011 healthy kids survey, they surveyed youth from the san francisco unified school district. 51% of our ninth graders and 58% of our 11th graders reported that it is easy to obtain cigarettes and they know which stores in san francisco they can go to p-r cigarettes. through the tobacco permit ordinance allows the department to suspend the tobacco permit up to 90 days for the first offense.
but instead of 90 days, the department health officer issued a 25-day suspension to alcatraz market in consideration of the economy and because the employee did ask to see the id. also, the department believes that 25 day suspension sends a strong message to alcatraz and other tobacco permit holders that there is no excuse for selling cigarettes to children. and in their brief, alcatraz market makes two excuses. first, they stated that the new employee didn't compute the date correctly, but again, i shared with you that the california identification card does not require any calculation of age. you only need to read the year in the blue strip. second, alcatraz market warns us that a 25-day suspension may cause their business to fold. so, this morning i did a little research. i pulled 20 businesses that served 25 day or greater
suspension and out of those 20 businesses that served 25 days with greater suspension between march 2011 and october 2012, only found one business that experienced a change of ownership after serving eight months after a serving a 25-day suspension and all the other 19 businesses have the same business owner and the same tobacco permit holder today. so, commissioners, i hope that you will uphold the department's 25-day suspension. thank you. >> i have a question. how long has this new driver license format been this way? >> i'm not sure. i would have to do some research for you. >> okay. >> i have a question as well. given the close proximity to the junior high schools and the high schools, how often are these stores dee coyed? he >> that we would have to research what the san francisco police department tries to do
to go through all of the permit holders. ~ and they just take a group at a time so we'll have to do some research for you [speaker not understood]. >> second question, do you know, has alcatraz been dee coyed in the past? >> that i would have to look into as well. >> okay, thank you. >> is there any public comment on this item? seeing no public comment, then you have three minutes of rebuttal. i just want to mention, you know, one time i was working and kids from the school, they come and they want to buy [speaker not understood] and i was working. actually they harass me and i have to call the police for them. i never did sell to anybody, you know, have kids and stuff, i would never do that. that's an honest mistake for the employee and he checked the id, but we're human beingses. we make mistakes. so, i called the cops and they come, you know, and they still come in for a certain time for
like three or four months harassing me in the store because i didn't sell them the sweeter sweet. so, i just want to mention that. i would never do that for any price for anything. you know, thank you. >> go ahead. >> we have some questions. come back to the microphone. there are some questions for you. >> just a quick question. how long has this employee been working for you that did the sale? >> the employee been working for like three years. and the new training, it was that day. so, that's the first day of the training. so, he was training him so he was busy with him, showing him store around and stuff. so probably his mind, he wasn't -- >> he wasn't a new employee. he was training with somebody else, is that what you were saying? correct, he was training somebody else in the same day, in that day when the dee coy come. >> you're saying he was distracted because he was training somebody else. correct. >> do you know how long the ids have been in this format, in your experience? i have no idea. i mean, they sent me one time -- the abc, the abc alcohol
thing, and we didn't sell them. they said to me a letter thank you for didn't sell. i guess he didn't sell them alcohol, the abc alcohol. you know, they do the same thing. they send dee coys and we didn't sell them the alcohol. >> okay. so, you don't know how long the ids have been in this format here? no, no. i mean [speaker not understood]. i don't know. >> i have one more question, sorry. yes, sir. >> so, in your brief you state that you are going to purchase a automatic id verification? yes, yes. actually, like i said, you know, i have financial crisis, my store being vandalized last week. and i just came from the police station. i was going down pearl, i recognized the guy in the video and i caught him myself. like two hours ago. [speaker not understood] make sure that thing will never happen again. >> okay, thank you. >> ms. young, you have rebuttal as well.
>> dph believes the 25 day suspension should be upheld because alcatraz market sold cigarettes to a 16-year-old. alcatraz market is in close proximity of high school and middle school. the california identification card does not require anyone to calculate the age of anyone. that's been around for quite sometime. a majority of stores are appealing their suspensions usually argue the penalty will cause financial hardship or closures. most businesses serve their suspensions without closure and there is no reason to treat alcatraz market any different from any other businesses. a 25-day suspension will [speaker not understood] alcatraz and other dph permit holders from selling cigarettes to children. thank you. >> commissioners, the matter is yours.
>> i'm not persuaded that this was at all intentional, and i do believe that the owner of the store has every intention of taking whatever precautions, not only not to have it happen again, but he has a track record of it never having happened beforehand. so, i would certainly consider a reduction in the penalty. ~ before >> normally, i do feel strongly about liquor stores or corner stores that sell tobacco products to minors. but at the same time, business owners are supporting our city. and i think sometimes mistakes happen. unfortunately, tobacco to a minor is a pretty big mistake, to be honest, but i am leaning with my fellow commissioner and at least not removing, but reducing the time. >> i think the circumstances
here lend more sympathy than i normally have for these types of violations. the problem is that the counter veiling concern is the proximity to the schools and schools where kids want to get cigarettes. and if they think they can sneak one by, they're going to keep trying. and i do also believe that a 25-day suspension is significant reduction from what the department can effectuate on a first-time offense from 90. so, my inclination is [speaker not understood] two minds, but i think my greater concern about the school children being nearby would outweigh my sympathy in this particular circumstance having a trainee make a mistake. >> for me, i mean, i was